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Colorado Criminal Law: Investigatory Stops and Questioning by the Police – Consensual Encounters, Reasonable Suspicion and Probable Cause to Arrest

Understanding your rights when contacted by the police or other law enforcement in Colorado begins by understanding the types of contact that are permitted by law and that are enumerated in  Colorado Cases and in the Statutes of Colorado. The following law is taken DIRECTLY from the recent 2011 case of The People of the State of Colorado v Walters, which was decided on April 18, 2011.

This was an ADAMS COUNTY case where the Defendant argued that evidence and statements obtained by police officers in connection with the defendant’s arrest for possession of and intent to distribute a controlled substance were illegally obtained.. and that the “the pretextual nature of the arrest made the subsequent search of defendant’s vehicle constitutionally impermissible, ” and the arresting officer failed to develop an independent, reasonable basis to stop and search the defendant. 

While the Defendant lost the appeal – the law enumerated in the case is helpful to understanding your rights as a citizen.

The Different Types of Contact With the Police

Not every encounter between police and citizens implicates Fourth Amendment concerns because a “seizure” does not occur until a police officer has restrained the liberty of the citizen.

Colorado law recognizes three types of police-citizen contacts: arrests, investigatory stops, and consensual encounters.

Each of these categories requires “varying levels of justification and protection.”

Arrests must be based upon probable cause – since they are the simplest and most obvious – I focus here on the other two … investigatory stops and consensual encounters.

Investigatory Stops in Colorado

While an investigatory stop constitutes a seizure implicating the Fourth Amendment’s safeguards, and therefore must be justified by reasonable suspicion, a consensual encounter does not require any amount of evidence.

A consensual encounter is one “in which no restraint of the liberty of the citizen is implicated, but the voluntary cooperation of the citizen is elicited through non-coercive questioning.”

The test for determining if the encounter is a consensual one is “whether a reasonable person under the circumstances would believe he or she was free to leave and/or to disregard the official’s request for information.”

The Intent – What Is In The Mind of the Police Officer Does Not Matter

The subjective intent of the officer in initiating the contact is not relevant for Fourth Amendment purposes.

In fact, in most cases regarding consensual encounters the police approach individuals because they have suspicions about them.” ..police often approach individuals randomly or because they suspect that the person is engaged in criminal activity. Because a law enforcement officer approaches an individual on a street or in a public place and identifies himself as a police officer does not convert the encounter into an investigatory stop.

Nor does the “inherent social pressure to cooperate with the police” elevate the encounter into a seizure.

Only if the “circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would believe he is not free to leave if he does not respond” does the police questioning result in a seizure under the Fourth Amendment.

The factors the Colorado Courts of Appeal have enumerated that may indicate a seizure include, but are not limited to, the following:

(1) whether there is a display of authority or control over the defendant by activating the siren or any patrol car overhead lights;

(2) the number of officers present;

(3) whether the officer approaches in a non-threatening manner;

(4) whether the officer displays a weapon;

(5) whether the officer requests or demands information;

(6) whether the officer’s tone of voice is conversational or whether it indicates that compliance with the request for information might be compelled;

(7) whether the officer physically touches the person of the citizen;

(8) whether the officer’s show of authority or exercise of control over an individual impedes that individual’s ability to terminate the encounter;

(9) the duration of the encounter; and

(10) whether the officer retains the citizen’s identification or travel documents.

Was the Vehicle Stopped – Already Pulled Over – or Was It Moving When the Contact Occurred?

In general, “there can be no question that the stopping of a vehicle and the detention of its occupants constitute a seizure within the meaning of the Fourth Amendment.”  But when a police officer does not pull over a vehicle, but approaches an individual in a vehicle that is already parked, the encounter does not automatically constitute an investigatory stop.

If the vehicle is already pulled over the general test for determining if an encounter is consensual, whether “the circumstances of th[e] encounter… [were] so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave.”

A request for consent to search does not transform a consensual encounter into a seizure so long as the officer does not “convey a message that compliance with [the request] is required.”

The encounter does not rise to the level of a seizure “unless it loses its consensual nature” .. for the encounter to rise to the level of a seizure, “the obligation to comply must be greater than the obligation an innocent citizen would normally feel to cooperate with the police.”

Statements Made at The Scene of the Encounter

Evidence obtained as a direct result of an illegal search or seizure is inadmissible. BUT if the Court concludes that the search of the defendant ‘s vehicle was not illegal, the defendant’s statements are not the fruit of the poisonous tree and are therefore admissible against him or her at trial.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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